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Classic sex crime laws are mainly a matter of sexual self-determination. If your free will of having sexual intercourse was infringed by force or intimidation, or by substances such as alcohol, then it is rape. Similar principles are applied to various sex crimes. Sexual self-determination was understood as a matter of body and physical touch. However, along with the development of filming devices and computer technologies, new kinds of crimes have emerged. Taking photographs, videos, and distributing such products soon became a serious social crime. 

One of the problems of such crimes was that it does not involve any physical touch. In the classic perspective, taking a picture does no harm to the body and self-determination. It was understood as more of a portrait right rather than a matter of sexual self-determination. The victim’s body and the self-determination of having sex are preserved. 

However, the development of the Internet, mobile phones, and other technology devices made this problem severe. Once certain images are uploaded onto the Internet, they spread out widely and permanently, and they did devastating damage to the victims’ honor, reputation, and personality. Requiring voice for protection became loud and vivid. In 2011, the right not to be filmed came to be acknowledged as a matter of both sexual self-determination and the portrait right, and the Act On Special Cases Concerning The Punishment Of Sexual Crimes (성폭력범죄의 처벌 등에 관한 특례법) was enacted. 

Act On Special Cases Concerning The Punishment Of Sexual Crimes (informally, Special Act on Sexual Crimes) came to stipulate filming against the will of the victim as a ”sex crime,” starting in 2011. Starting with filming against the will, the Special Act on Sexual Crimes additionally stipulated “distribution against the will,” ”habitual filming,” and ”false video products (deep fake)” as sex crimes. 

In this article, we are going to overview the briefs of the crimes using cameras. 

Sex Crimes Using Cameras in Korea

Article 14 (Taking Photographs or Videos by Using Cameras)

(1) A person who takes photographs or videos of another person’s body, which may cause any sexual stimulus or shame against the will of the person who was shot, by using a camera or other mechanism which has functions similar thereto, shall be punished by imprisonment with labor for not more than seven years or by a fine not exceeding 50 million won. <Amended on Dec. 18, 2018; May 19, 2020>

Paragraph (1) is the most basic type of crime, the filming against the will of the victim using a camera (or anything camera-like). In Korean, it is traditionally abbreviated as “몰카(molka)” meaning ”a hidden camera.” Nowadays it is officially called ”불법촬영물(bulbeob chwalyoungmul)” meaning ”an illegally filmed video.” 

The conundrum of this Article is what really is “another person’s body, which may cause any sexual stimulus or shame.” This has been a subject of a long debate among scholars and courts. What is a shame-causing or sexually stimulating body parts? Or what really is a sexual shame? If you take a photo of a woman wearing leggings, is that a “person’s body that may cause any sexual stimulus or shame?” After a long time of debates, Korean Supreme Court has built certain criteria for deciding the questions hereabove. The following is a quotation of 2019Do16258 Dated December 24, 2020. 

1. It is generally accepted that the genital area, buttocks, and female breast are included among “another person’s body which may cause any sexual stimulus or shame,” and moreover, other body parts such as female thighs or belly can also be included. In addition, “another person’s body’ does not have to be an exposed bare body part. As the situation of this case, if the clothes are tightly stuck to the body so that the bodyline of the thighs and buttocks is exposed, it can also be ‘another person’s body which may cause any sexual stimulus or shame.”
2. Whether it is an “another person’s body which may cause any sexual stimulus or shame” is not solely and objectively decided by the part being pictured. The same part of a body can also result in a different conclusion, according to the situation and how it was filmed. The way of picturing, purpose, and context should be considered, and it should be comprehensively and independently decided. 
3. The victim’s statement of “feels upset, how can a human being be like such, and I was wondering what his purpose of life would be” could be understood as an expression of sexual humiliation, shame, and wrath of being treated as an object of a sexual desire without permission, therefore incurring a sexual shame. And according to the object of taking a picture, the result, the way, the context, and the reaction of the victim, it is recognizable that normal average people of the victim’s age and sex shall consider the act of a criminal defendant as “taking a photograph of another person’s body which may cause sexual shame.”

This case is one of the most famous and recent cases regarding Article 14 (1), with the nickname “the leggings case.” The assailant had seen the victim wearing leggings, and he thought that it looks good, and he had taken a picture without consent. The victim had felt upset and rage.

What we can figure out from this case is, firstly, the body part that could cause sexual stimulus or shame shall be determined by the situation and the context. If you are wearing a cloth, your body parts are highly likely to be covered by it. However, according to the context and the way how it was taken, and the leggings may show the line of a body, still, it could be regarded as a crime. 

Secondly, sexual shame does not have to be only “shame” itself. Although the literal expression of the Article is “sexual stimulus or shame,” the feelings of the victim against the crime could be diverse, such as being upset, angry, disgusted, filthy, unhappy, indecent, or whatsoever. As the victim’s feelings and reactions shall be complex and delicate, then the interpretation of the law should also be comprehensive enough to include such cases. Therefore, it does not have to be restricted to “shame” itself. 

(2) A person who distributes, sells, leases, provides, or openly exhibits or shows (hereinafter referred to as “distribution, etc.”) a photograph taken under paragraph (1) or its duplicate (including a duplicate of its duplicate; hereafter in this paragraph, the same shall apply) or a person who makes the distribution, etc. of a photograph or video taken under paragraph (1) or its duplicate against the will of the person shot after the photograph or video taken under paragraph (1) was not against the will of the person shot (including a person who takes his/her body himself/herself) as at the time such photograph or video was taken, shall be punished by imprisonment with labor for not more than seven years or by a fine not exceeding 50 million won. <Amended on Dec. 18, 2018; May 19, 2020>

Paragraph (2) is one of the most newly amended laws. This Paragraph stipulates the “distribution” of such images and videos. 

The objects of Paragraph (2) are, 1) images (or videos) that fall under Paragraph (1), and 2) images that were taken with consent, but the distribution is against the will of the person. 

The recently issued crime of so-called “revenge porno (uploading the videos of ex-partners as revenge)” falls under the second case of this Paragraph.  

It is not a crime when you take picture of your partner when the partner agrees of taking it. Some may want to film them making love with their partners (with consent), and that is not a crime. However, if you upload the images or the videos of such without the consent of your partner, then it is a crime that falls under Paragraph (2), and it is a sex crime against your partner. It is an infringement against the portrait right and sexual self-determination. 

(You may wonder, what if I upload the video “with consent,” then is that also a crime? It is not a ”sex crime,” but you shall also be punished, as that shall be regarded as making porn, and it is prohibited in South Korea.) 

(3) For the purpose of making profits by using an information and communications network (hereinafter referred to as “information and communications network”) referred to in Article 2 (1) 1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, a person who commits a crime under paragraph (2) against the will of a person shot, shall be punished by imprisonment with labor for a limited term of at least three years. <Amended on Dec. 18, 2018; May 19, 2020>

(5) A person who habitually commits any of the crimes provided for in paragraph (1) through (3) shall be aggravatingly punished by up to 1/2 of the punishment for each crime. <Newly Inserted by May 19, 2020>

Paragraph (3) and (5) is for additional punishment. Paragraph (3) is to additionally punish those who commit crimes of Paragraph (2) via the Internet with the purpose of making a profit. The imprisonment period is at least 3 years, which is identical to the counterpart of rape. If you distribute such images or videos without consent, it is as bad as a physical infringement of sexual self-determination. Paragraph (5) is to punish those who habitually commit such crimes.

(4) A person who possesses or has seen or purchased the photograph or its duplicates referred to in paragraph (1) or (2) shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 30 million won. <Newly Inserted on May 19, 2020>

Paragraph (4) is quite interesting. Article 14 not only punishes the one who had taken a photo without consent or distributed it without consent but also punishes the one who had bought, kept, and watched. This Paragraph is to penalize the ”consumer” of illegally filmed videos. The rationale underlying this Paragraph is that the consumer is also an accomplice of the crime. Especially, watching (including streaming) is punishable, therefore it is recommended to check whether this video is illegally filmed or not, and report it to the police in order not to be involved. 

Conclusion

The field of sex crimes is relatively rapidly changing, due to the change in sexual norms and the change in technologies. Article 14 and its Paragraphs are relatively newly enacted laws, stipulating modern crimes using cameras. Filming itself without consent is a crime. Distribution without consent is also a crime even if it was filmed with consent. Making money or habitual crime shall be additionally punished. Lastly, when you watch or keep such illegally filmed videos, it is also punishable. 

If you are under certain allegations, the police will try to seize your cell phone to prove that you have committed a crime. In such cases, help from a lawyer is crucial for the exercise of your defensive right. Seoul Law Group has various experiences with such crimes, either for the victim or for the assailant. Please do not hesitate to contact us.